Judges: CHARLES C. ADAMS
Agency: Department of Business and Professional Regulation
Latest Update: Feb. 04, 1977
Summary: Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit
Summary: Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.Suspend license thirty days and fine $150 for selling beer on Sunday.
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75-2011STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )
)
Petitioner, )
)
vs. ) CASE NO. 75-2011
) ARTHUR HAYES, JR., t/a DINAH'S ) WEST SIDE GROCERY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a hearing was held on January 22, 1976, at 1300 West Lee Read, Orlando, Florida before Charles C. Adams, Hearing Officer, with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: WILLIAM HATCH, Esquire
Department of Business Regulation The Johns Building
Tallahassee, Florida 32304
For Respondent: ARTHUR HAYES, JR.,
1717 West 18th Street Sanford, Florida
ISSUES
Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29
Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed,
alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
FINDINGS OF FACT
In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday.
The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida.
Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker.
Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer.
The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in
effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday.
The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door.
After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
CONCLUSIONS OF LAW
It has been proven as a matter of law that on or about July 13, 1975, Arthur Hayes sold a quart bottle of Schlitz beer to agent Eugene Fogel contrary to Florida Statutes 561.29.
It has been proven as a matter of law that on or about July 20, 1975, Arthur Hayes sold a quart bottle of Schlitz beer to agent Eugene Fogel contrary to Florida Statutes 561.29.
RECOMMENDATIONS
For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00.
DONE and ENTERED this 5th day of February, 1976, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
William Hatch, Esquire
Department of Business Regulation The Johns Building
Tallahassee, Florida 32304
Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
DIVISION OF BEVERAGE
IN RE: DINAH'S WEST SIDE GROCERY
1717 West 18th Street CASE NO. 75-2011
Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139
/
ORDER
COMES NOW the Director of the Division of Beverage, Department of Business Regulation, State of Florida, and after due consideration in the above styled matter,
The Director of the Division of Beverage adopts the hearing examiner's finding and conclusions of law but orders a lesser penalty than recommended by the hearing examiner.
It is ORDERED that the licensee pay a civil penalty in the amount of $100.00 within 15 days from the date of this Order. Upon failure to make timely payment of the civil penalty will result in a five (5) day suspension of the beverage license.
DONE AND ORDERED this 8th day of March, 1976, in Tallahassee, Leon County, Florida.
Charles A. Nuzum, Director Division of Beverage
Department of Business Regulation State of Florida
Pursuant to the Department of Business Regulation Appellate Rules, you have the right to appeal this Order to the Board of Business Regulation by filing Notice of Appeal with the Executive Director,
Department of Business Regulation, Johns Building, Tallahassee, Florida, within 20 days from the date of this Order.
Pursuant to Rule 7-1.22, Department of Business Regulation Appellate Rules, you must enclose a check or money order made payable to the Department of Business Regulation for $25.00 as a filing fee.
================================================================= AMENDED AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
DIVISION OF BEVERAGE
IN RE: DINAH'S WEST SIDE GROCERY
1717 West 18th Street CASE NO. 75-2011
Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139
/
AMENDED ORDER
COMES NOW the Director of the Division of Beverage, Department of Business Regulation, State of Florida, and after due consideration in the above styled matter, it is hereby ORDERED:
The Director of the Division of Beverage adopts the hearing examiner's finding and conclusions of law but orders a lesser penalty than recommended by the hearing examiner.
It is ORDERED that the licensee pay civil penalty in the amount of $100.00 within thirty (30) days from the date of this Order. Upon failure to make timely payment of the civil penalty will result in a five (5) day suspension of the beverage license.
DONE AND ORDERED this 2nd day of July, 1976, in Tallahassee, Leon County, Florida.
Charles A. Nuzum, Director Division of Beverage
Department of Business Regulation State of Florida
Docket for Case No: 75-002011
Orders for Case No: 75-002011
